Aruchami vs State of Kerala

M.R. Hariharan Nair, J.—The prayer of the petitioner, who is a Contractor, is to quash the proceedings initiated by the Sub Divisional Magistrate, Palakkad in M.C. No. 66 of 1997.

Learned counsel for the petitioner submitted that there is absolutely no justification for proceeding against the petitioner invoking the power u/s 107 of the IPC and that the only basis for initiating action is a report sent up to the Sub Collector, Palakkad, who is also the Magistrate, from the Nirmithi Kendra, Palakkad, requesting that action for realisation of an amount of Rs. 21,000/- be initiated.

The learned Public Prosecutor submitted that the aforesaid M.C. is not for action u/s 107, but based on Section 109 of the Cr.P.C. and that the said action is fully justified.

Section 109 of the Cr.P.C. reads as follows:

"Section 109. Security for good behaviour from suspected persons - When an Executive Magistrate received information that there is within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit."

It is obvious from a perusal of the said Section 109 that concealment of one''s presence when he has reason to believe that he is doing so with a view to commit a cognizable offence would attract proceedings u/s 109 of the Cr. P.C. A perusal of Annexure I complaint produced along with the petition shows that the Nirmithi Kendra alleged that the present petitioner, after completing the work relating to a school building on receipt of a sum of Rs. 21,000/- as advance, under an agreement, was absconding after he was directed to shift the materials belonging to the Nirmithi Kendra to Koduvayoor for starting another work. It is also alleged that contrary to the aforesaid direction from the Project Manager, he had shifted the centering materials to another private site and it is thereafter that he has been absconding. In view of the aforesaid report and the allegation of abscondance, which obviously is to conceal his presence, the only other requisite for attracting Section 109 of the Cr.P.C. is the existence of a reason to believe that the petitioner was committing a cognizable offence by refusing to comply with the requirement in Annexure I.

Section 405 of the IPC reads as follows:

" Section 405. Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"."

Section 406 makes commission of criminal breach of trust as above liable to be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The offence u/s 406 of the IPC is cognizable.

In view of the above legal position, the only other aspect to be gone into is whether there is prima facie material to show the existence of the ingredients of Section 405 of the IPC as above. Entrustment of property and disposal of the same in violation of any direction of law prescribing the mode in which such entrustment was to be discharged or of any legal contract, express or implied, which the petitioner has made touching the discharge of such trust would be sufficient to complete the offence. If the allegations in Annexure I are correct, there was entrustment of the centering materials belonging to the Nirmithi Kendra to the petitioner and also violation of the lawful direction given by the Project Manager for shifting the same to Kodyvayoor. There is also an allegation that flouting the said lawful direction the petitioner has shifted it to a private place. According to me, there is a prima facie case for proceeding against the petitioner u/s 109 of the Crl.P.C. and in that perspective there is absolutely no scope for intervening in the proceedings in MC No. 66 of 1997.

The petitioner has a case that it is without recourse to the relevant provisions of the Cr.P.C. that the action is initiated. It is for the petitioner to point out the relevant violations, if any, in the matter of the procedure before the learned Magistrate. If any such defect is pointed out, that will be looked into by the learned Magistrate and the matter will be pursued only in accordance with law.

In the circumstances the Crl.M.C. is dismissed with the observations aforementioned.